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Tobacco companies sue FDA over graphic warnings

August 17, 2011 | 3:16
pm

If the FDA gets its way, by Oct. 22, 2012, every pack of cigarettes sold in the United States will carry one of nine graphic, full-color, gross warnings reminding people of just how horrible smoking is for their health. The image might be a pair of healthy lungs next to a pair of blackened and diseased lungs. Or a man smoking out of a hole in his throat. Or a mouth with sores on the lips and teeth all yellowed and decayed.

But tobacco companies are fighting that plan. On Tuesday, five U.S. tobacco companies sued the federal government, saying the mandatory warnings would violate their free speech rights.

"Never before in the United States have producers of a lawful product been required to use their own packaging and advertising to convey an emotionally charged government message urging adult consumers to shun their products," the companies wrote in the complaint.

A copy of the complaint, filed in federal court in Washington, was provided to the Los Angeles Times.

The complaint also includes this line: "This is precisely the type of compelled speech the 1st Amendment prohibits."

It's a juicy issue, to be sure.

For more than 45 years, the FDA has required cigarette companies to put surgeon general warnings on all their products and advertisements. (The complaint filed Tuesday notes that the plaintiffs never challenged that requirement legally.)

But this new requirement seems to be a different can of graphic worms. The warnings will be printed on the entire top half of the cigarette packaging, on both the back and the front sides. They'll also include a phone number for a stop-smoking hot line.

It's hard to argue that the packages are meant to send the message: If you use this product, you could die. Or get a diseased mouth. Or hurt your baby.

Perhaps it should be noted that Altria Group Inc., the parent company of the nation's largest cigarette maker, Philip Morris USA, is not part of the lawsuit.

In a statement, Martin L. Holton III, executive vice president and general counsel for R.J. Reynolds, said: "Rather than inform and educate, the graphic warnings include nonfactual cartoon images and controversial photographs that have been technologically manipulated to maximize an emotional response from viewers, essentially turning our cigarette packs into mini-billboards for the government’s anti-smoking message.”

He said people should be educated on the dangers of smoking, "but this regulation completely disregards core constitutional principles."

The FDA isn't commenting on the litigation at the moment.

But in a news release from June 21, when the agency selected the nine images, Health and Human Services Secretary Kathleen Sebelius said, "These labels are frank, honest and powerful depictions of the health risks of smoking and they will help encourage smokers to quit."